Summary: We will not investigate Mr B’s complaint that his car was damaged by a pothole. This is because it is reasonable for Mr B to pursue his compensation claim by taking the Council to court.

The complaint

1. Mr B complains his car was damaged by a large pothole which the Council failed to repair. Mr B says the Council wrongly refused his compensation claim and ignored the evidence of the pothole he provided. Mr B would like the Council to reimburse his repair costs.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The Act says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. We do not normally investigate complaints about vehicle damage caused by highway disrepair. This is because in effect such complaints are that an organisation has been negligent. Also, the level of highway maintenance, frequency of inspection, and threshold for repair is not set out in law and is open to interpretation.
7. The Council has considered Mr B’s claim for compensation but did not accept the Council is liable for the damage to his car. Mr B may pursue his claim by taking the Council to court.
8. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
9. The presence of a road defect at the time of an incident is not normally enough on its own to prove negligence.
10. This is because a local highways authority has a statutory defence if it can show it could not reasonably have been expected to put right a defect before the incident happened. The Council has relied on this statutory defence in response to Mr B’s claim. Only the court can decide if the Council has been negligent and whether the Council is entitled to rely on this statutory defence.
11. Also, unlike the courts, we have no powers to enforce an award of damages.
12. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts. I do not consider it is unreasonable for Mr B to do this.
13. So, we will not investigate this complaint.

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Final decision

14. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

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Investigator's decision on behalf of the Ombudsman